Houston, younger, of that Ilk, and his Lady, v. Sir John Shaw of Greenock
Date: 25 January 1715 Case No. No. 12.
Found, that a substitute in an entail may insist against the granter for exhibition but reserving all defences against registration, or any other legal effect.
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The now Sir John Shaw, standing publicly infeft in the fee of the lands of Greenock, without any restriction, in anno 1686, he and the deceased Sir John, his father, in March, 1700, in a contract of marriage, do jointly make a tailzie of their estate, and grant procuratory for resigning the same in favours of Sir John, younger, and the heirs-male to be procreated of the marriage; which failing, to his younger brothers successivè; which failing, to Mrs. Margaret Shaw, pursuer, and her heirs, &c. There are also prohibitory and irritant clauses, de non alienando, et non contrahendo debitum. Which contract is recorded in the register of tailzies. The younger brothers having deceased, without issue, and the pursuer, standing next in the tailzie, pursues for exhibition thereof, that the same may be recorded in the books of Session, for preservation of the principal, because principals are not left in the register of tailzies.
Alleged for the pursuers: Whoever has interest in a writ, whether immediate or remote, has interest in the preservation of it, and, for that purpose, may have it judicially exhibited, and put into the public repository; nay, this might be urged in a simple substitution, though alterable by the fiar; for it is not enough to say the writ may be revoked, ergo, it ought not to be exhibited, for the very way of proponing that, shows it is still a subsisting writ; but, in the present case, the rule is more firmly established, where the heirs of entail are only life-renters; and if Sir John have the absolute power of disposing of it, the exhibition and registration will not in the least diminish his right; especially since it is already published by his own deed; so that it is not like an undelivered writ. This is founded in the civil law, where the remoteness of the right does not hinder this interest; for every conditional right, not purified, is a remote right. But so it is, that, by the common law, all substitutes, legatars, fide commissarii,&c. yea, they who were such sub conditione tantum, had right to this action, and for which the Prætor proposed a special interdict, De Tab. exhibend.; and is further cleared from L. 2. Pr. D. Quemad, test. aper. tabularum testamenti instrumentum non est unius hominis h. e. heredis, sed universorum quibus quid illic adscriptum. Yea, in L. 1. § 5. & 11. D. De Tab. exhib. it is expressly said, that Interdictum de tabulis exhibendis ad omnem omnino scripturam testamenti sive perfectam, sive imperfectam, etiam deletam, pertinet; and a remote heir substituted is like a heres, or legatarius sub conditione. And thus it is said, in L. 3. § 14. D. De tab. exhib. Et si sub conditione legatum sit, quasi conditione existente sic estimandum est; nec compelli debebit, ut se restituturum caveat quiquid consecutus est, si conditio defecerit. By which, notwitstanding the condition, he had the interdict competent to him for exhibition. The like in our practice, where there is no immediate right, but a spes only; as in the case of a tutor-in-law against a tutor-dative, who was in possession of the pupil's writs, 15th December, 1664, Fork contra Loudon, No. 20. p. 3977.; where the reason is given, viz. that it might not be in the power of the other to embezzle. As also in the case of a personal creditor, observed by Spottiswood, 3d July, 1635, Howison, voce Title to Pursue, who, in order to an apprising, was allowed to pursue exhibition of an heritable bond due to the debtor.
Answered for the defender; 1mo, That he was neither bound to exhibit nor register his own writ, unless the Lords should find, that the pursuers have a sufficient interest to insist in such an action; for, in every exhibition, the defender is allowed, in the first place, to dispute the jus persequendi, before he can be decerned to take a day to exhibit; and the very nature of the thing requires it, otherwise sentence would pass in the conclusion, without allowing parties to examine the premises; 2do, The ordinary case of decerning to exhibit, reserving against delivery, is, where there may be some doubt concerning the nature and circumstances of the writ; but here, the pursuers libel upon a writ of a particular tenor, and the defender, admitting the tenor to be as libelled, says, he cannot be compelled to exhibit, far less to register; 3tio, The defender founds on the nature of property, and therefore the writ called for being his proper evident, he cannot be compelled to do any thing in relation to his own property, (of which he is liber moderator et arbiter), at the instance of a party who does not (in this argument) say he has power to dispose on the subject at his pleasure; 4to, Actio est jus persequendi in judicio quod nobis debetur; therefore the pursuer's title must appear before an action can be sustained, particularly in case of exhibitions. Thus, L. 19. D. Ad exhib. Sed quidam consuluit, an possit efficere hæc actio ut rationes adversarii sibi exhibentur, quas exhiberi magni ejus interesse est. Respondet, non oportere ejus civile calumniari, neque verba captari, sed, qua mente quid diceretur animadvertere convenire. Whence it is plain, that men are not to be disturbed in their possessions or property, but where there is a peculiar title. As to the Interdict De tab. exhib. that interdict concerns not the law of Scotland; for with us there is no such recognition nor solemnity of seals to subscriptions required as gave rise to that interdict anent testaments among the Romans. Besides that, the interdict relates only to writs that have been left by a person deceased. But this action is like exhibition of a testament while the testator lives.
Replied for the pursuers: That the cases widely differ; for a testament, while the testator lives, has no being, has conveyed no right; whereas, a contract of tailzie registered, has once given a right; revocable or not, is not the question. And as to the things being the defender's property, &c. these are jura or exceptiones differendæ in directum judicium, (i. e. the pursuer's special conclusion), re interim exhiberi jussa; L. 13. § 13. D. Ad exhib. And as to the other laws cited, the pursuer's interest is evident and still permanent, and must be so, hac lite Pendente, during which time the defender can innovate nothing to their prejudice; since tenetur et qui dolo desiit possidere: Whether their title be so strong as to force the registration? is a question only disputable after exhibiting. The pursuer's interest being clear, the reasons for exhibiting the principal are, 1mo, That the extract from the record of tailzies does not answer the intent of this action, because the same cannot satisfy in an improbation; and every person that has interest in a writ, has interest to be so master of that principal as might answer any such process, if intented. 2do, Another reason is, the difficulty of making up tenors, if it should be lost, and the pursuers prevail in this principal process; nor matters it though they give no reasons of their fear of an improbation, or losing the paper, since prestat intacta jura servare quam post vulneratam causam remedium querere. 3tio, A third reason is, That the only remedy of proving the tenor in such cases, viz. instrumentary witnesses, &c. may be disappointed.
The Lords found the defender ought to exhibit, reserving all defences against the registration, or any other legal effect, as accords.
Act. Sir Walter Pringle, &c.Alt. Hugh Dalrymple, &c.Clerk, Mackenzie.
Bruce, p. 51.
